It has been reported that the Fair Trade Tobacco Association (Fita) is preparing to take its fight against the controversial tobacco ban to the Supreme Court of Appeal (SCA). In fact, the tobacco industry is rolling its dice in all directions. British American Tobacco SA (Batsa) is also awaiting its case against the ban to be heard in the Western Cape High Court in early August 2020. 

Advocate Arnold Stubel, for Fita, is still of the view that the Pretoria North High Court came to the wrong decision when it decided against the lifting of selling cigarettes and related products. I do not wish to speak much on the tobacco case as it is heading to the SCA and the Western Cape High Court, except to say that the industry will need a good and different script to convince the courts otherwise, even if it means using comparative jurisprudence.

Talking about comparative jurisprudence, case law coming out of the US Supreme Court with regard to church lockdown regulations is interesting, and the different opinions (decisions) of the justices in this court could help legal arguments in favour of or against the nature and application of lockdown regulations in the different sectors in South Africa. As a reminder: Some two months ago, Freedom of Religion South Africa complained that President Cyril Ramaphosa is paying little attention to the needs and activities of the religious sector during lockdown levels. “…[T]he lockdown regulations are not considering us and we’re saying this is not proportionate with how other sectors are being treated,” said Michael Swain (Executive Director of FRSA).   

While it is understandable that many people interpret the Covid-19 regulations and counter-measures through the prism of their own needs and sector objectives, the sometimes different approach taken by governments in lockdown regulations also raises serious questions about the legitimacy and justifications of the measures. In South Africa, for example, local taxis are allowed to operate under their normal operating capacity of 100% loading of taxis, despite the high possibility that Covid-19 transmissions and infections are likely to fester during transportation. 

On the other hand, churches, mosques, Islamic seminaries and other places of worship that normally have services of limited hours are strictly limited to 50 worshippers, while casinos have the potential to admit hundreds of patrons. Casinos were allowed to operate and fill a maximum of 50% of their floor space, subject to observing certain protocols maintaining a physical distance of 1.5m from each other. 

This means that a casino with the floor capacity of 1,000 patrons can allow in 500 people to gamble daily from 8am– 8.30pm on its over 1,700 slot machines and 50 tables. Yet, an ordinary member of the community cannot be allowed to visit a sickly mother without being taken from pillar to post to secure interprovincial permits – according to some arguments. This picture presents South Africa’s handling of its Covid-19 response as chaotic and autocratic.

The fact is that lockdown regulations are controversial across several jurisdictions, so even the judiciary is nudged to abandon its functional independence in favour of striking down lockdown measures. A case in point is the scoffing at US Supreme Court Chief Justice John Roberts by conservative lawmakers after he sided with the court’s four liberal judges in a 5-4 decision of Calvary Chapel Dayton Valley v Sisolak (Calvary Chapel case) of 24 July 2020. 

The court rejected the Nevada Calvary Chapel Dayton Valley’s petition to block the Nevada state government from enforcing a 50-person limit on attendance at religious services amid the Covid-19 pandemic. Immediately after the decision, Senator Ted Cruz (Republican Texas), accused Roberts of having “abandoned his oath”. Another senator, Tom Cotton (Republican Arkansas), decried the limit as a violation of freedom of religion and said the Nevada State government’s lockdown restrictions treat churches unfairly compared to other businesses in the state.

State guidelines limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees. In this case, a claim was that the stay-at-home order ignored and violated religious freedoms.

But, Roberts has been consistent in his ruling. In an earlier case involving a church, Roberts did what many thought cannot be done by a conservative judge, ruling against a California church challenging the state’s stay-at-home order, brought by the South Bay United Pentecostal Church in Chula Vista, California.  

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment,” Roberts wrote.

State guidelines limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees. In this case, a claim was that the stay-at-home order ignored and violated religious freedoms. Chief Justice Roberts went further to make a comparison between restrictions that apply to comparable secular gatherings, including lectures, concerts and movie showings. 

The bone of contention in the Calvary Chapel case was that a Nevada state government public health order is that churches may not admit more than 50 people at the same time. However, other institutions, such as casinos, breweries, bowling alleys and gyms, may operate at 50% capacity. This unequal treatment was better explained in the dissenting opinion of Justice Brett Kavanaugh who wrote that “a casino with a 500-person occupancy limit may let in up to 250 people,” but “a church with a 500-person occupancy limit may let in only 50 people”. Churches felt singled out in having to follow what is called “valid and neutral law of general applicability”. 

The same arguments by Kavanaugh, which refers to better treatment of casinos, can be made in South Africa. A particular point of interest in the dissenting opinion of Kavanaugh is his reference to the 1978 Supreme Court Case of McDaniel v Paty, 435 US 618, 639, which held that the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits” [p2] and to what the McDaniel v Paty court stated as the discrimination against churches that is odious to some Americans. 

Kavanaugh did admit in his opinion that “the State also has substantial room to draw lines, especially in an emergency”. For many countries around the world, the Covid-19 emergency is used, in part, as justification for actions that are against the “normal”. Still, I must add, constitutional protections, rights and freedoms must not be disregarded.  

I must say that the dissenting opinions in the Calvary Chapel case forced me to do some thinking with regard to the state of the South African lockdown and Covid-19 regulations. The following observation by Kavanaugh may be relevant, particularly in the battle of the ban of the twin sins of alcohol and tobacco considered at the time when alcohol sales were allowed, but tobacco sales prohibited. 

“Under the Constitution, state… [has] the primary responsibility for addressing Covid-19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like. But Covid-19 is not a blank cheque for a State to discriminate… There are certain constitutional red lines that a State may not cross even in a crisis,” said Kavanaugh [p10].

… How much can we agree to disagree on the differentiated lockdown restrictions in South Africa, taking as a functional example the permission granted to the local taxi industry to operate at full capacity, and the opening of casinos? 

Another dissenting opinion of note in the Calvary Chapel case is by Justice Samuel Alito, which may to a certain degree fuel conspiracy theories that we have heard so often in the South African tobacco ban battle. In his opinion that was crafted as the duty of the judges to defend the Constitution, Alito expressed the following concern: “That Nevada would discriminate in favour of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility” [p1].

Alito buttressed his opinion by citing a previous US Supreme Court case in Church of Lukumi, 508 US, at 547, that “a law cannot be regarded as protecting an interest of the highest order… when it leaves appreciable damage to that supposedly vital interest prohibited”. According to Alito, restrictions on churches is a gamble that should not be allowed when viewed against the better treatment offered to casinos.

“The State certainly has not shown that church attendance under Calvary Chapel’s plan is riskier than what goes on in casinos,” said Alito [p3]. Those baffled by the permission of the taxi industry to operate at full capacity with regard to local trips must be saying: I wish this was said by a judge in South Africa against the decision to allow taxis to operate at full capacity.

Going back to Chief Justice Roberts, who was backed into a corner: How much can we agree to disagree on the differentiated lockdown restrictions in South Africa, taking as a functional example the permission granted to the local taxi industry to operate at full capacity, and the opening of casinos? 

What about the closing of public schools while private schools are allowed to remain open amid the Covid-19 pandemic peak? Should the state care enough to guard and protect our health and safety during Covid-19? If there is a duty of care on the state would the degree and extent of care not be considered by others as unjustified paternalism? 

I am inclined to refer briefly as part of attempting to answer these questions to the validity of the opinion by Chief Justice Roberts in his South Bay case vote: “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” said Roberts in his South Bay opinion. 

I do believe in the separation of duties and powers, but not when it means the courts must defer to the political elite to act in a legally and constitutionally dubious manner.

Roberts further noted that the American Constitution “principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect,’” [p2] quoting the 1905 case of the US Supreme Court in Jacobson v Massachusetts, 197 US, 11. Roberts further quoted a 1974 decision of his court (Marshall v the United States, 414 US 417, 427 (1974)), which read: “When those officials undertake… to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad” [p2]. Roberts then went on to conclude that in his view, “the notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable,” [p3].

I am inclined to accept with trepidation the opinion by Roberts that our political office-bearers should without interference be entrusted with the “safety and the health of the people”, and also holding on to a thin thread that they are ethical and accountable enough to safeguard and protect the interest of South Africans. If you read closely the opinion of Roberts, it conveys the message of separation of powers and that courts have a constitutional duty to defer to democratically accountable officials during a historic public health crisis like the Covid-19 pandemic. 

I do believe in the separation of duties and powers, but not when it means the courts must defer to the political elite to act in a legally and constitutionally dubious manner. Our South African political elite are alleged to have inserted their hands too deep into the Covid-19 cookie jar to serve their personal financial interests or that of their families. Some are alleged to have displaced businesses that should be contracted to the government with their own or that of their family members and relatives to milk the government coffers dry.

What is more concerning is our readiness as a society to accept corrupt activities. For instance, recently a suggestion was made that South Africa consider offering corruption amnesty as a matter of urgency, citing that “one of the primary reasons for Hong Kong’s rapid transformation lies in its successful utilisation of an amnesty process that was made available to those who had in the past participated in corrupt activities, particularly the members of the Royal Police Force of Hong Kong”. 

This is a misplaced comparison – Hong Kong is much better when it comes to the institutional and normative frameworks for fighting corruption. Hong Kong authorities generally don’t pay lip service to combat corruption. GE Fitzgerald QC, as he was then, in the 1987 report of the Commission of Inquiry into possible Activities and Associated Police Misconduct of (Fitzgerald Commission of Inquiry] in Western Australia, observed the following regarding corruption immunity: “The grant of immunity from prosecution is a serious step, and the responsibility for recommending that an ‘indemnity’ be given is a heavy burden. A community which has been misused feels justifiable anger and expects the punishment of those responsible. It is unhealthy if frustrations are increased by criminals’ escape from what they deserve…” [p.12].

I have veered off the road a bit with reference to corruption. However, South Africa’s Covid-19 strategy is a tapestry of everything: heavy-handedness of the security forces; the carelessness of some communities towards the dangers of Covid-19; lockdown prohibitions that are unequal and discriminatory; and allegations of corruption by government officials. The courts are like a fork in the road, and will continue to face criticism from both the government and the case petitioners. DM